KFXL and Minister for Immigration and Multicultural Affairs (Citizenship)
[2025] ARTA 48
•29 January 2025
KFXL and Minister for Immigration and Multicultural Affairs (Citizenship) [2025] ARTA 48 (29 January 2025)
Applicant:KFXL
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/3270
Tribunal:General Member K. Thornton
Place:Melbourne
Date:29 January 2025
Decision:The Tribunal affirms the reviewable decision.
.......................................[SGD].................................
General Member K. Thornton
Catchwords
CITIZENSHIP – application for conferral of Australian citizenship – Australian Citizenship Act 2007 (Cth) – eligibility of person aged under 18 – general eligibility provisions – exercise of discretion to refuse citizenship approval of minor applicant – Citizenship Policy – Revised Citizenship Procedural Instructions – best interests of the child – no significant hardship or disadvantage identified – reviewable decision affirmed
Legislation
Australian Citizenship Act 2007 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)Cases
Mohamed and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 2420
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31
Teng and the Minister for Immigration and Citizenship [2012] AATA 388Secondary Materials
Department of Immigration and Border Protection, Australian Citizenship Policy Statement (Reissued 27 November 2020)
Department of Immigration and Border Protection, CPI 4 – Australian Citizenship by Conferral – Person Under 18 (reissued 31 October 2021)
Department of Immigration and Border Protection, CPI 11 – Assessing the likelihood to reside in, or maintain a close and continuing association with Australia (updated 4 October 2024)
Department of Immigration and Border Protection, CPI 12 – Assessing significant hardship, disadvantage or detriment for the purposes of Australian Citizenship (issued 10 April 2019)
Department of Immigration and Border Protection, CPI 13 – Best interests of the child assessments (issued 10 April 2019)
Statement of Reasons
BACKGROUND
This is an application for review of a decision to refuse to grant the Applicant’s application for Australian citizenship by conferral.
The Applicant is a minor and has been allocated a pseudonym. He applied for Australian citizenship by conferral on 19 July 2023.
The Application was refused by a delegate of the Respondent on 24 April 2024 (‘the reviewable decision’). The Applicant lodged an application for review with the Administrative Appeals Tribunal (‘AAT’).
On 14 October 2024, the AAT became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (‘the Transitional Act’), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
Hearing of the application
The hearing of the application took place at the Melbourne Registry by video on 16 and 17 January 2025.
The Applicant was represented by Mr James Hammond from Hammond Migration. The Respondent was represented by Ms Sophia Xian from Clayton Utz. The Applicant gave evidence and was cross-examined.
The Applicant also called evidence from the following witnesses:
(a)The Applicant’s parents;
(b)The Applicant’s cousin;
(c)The Applicant’s uncle;
(d)The Applicant’s grandfather;
(e)The Applicant’s counsellor; and
(f)Two family friends (KP and NR).
The Tribunal also received into evidence the following material:
(a)Exhibit A1: Applicant’s Hearing Bundle lodged 15 January 2025 comprising 78 pages;
(b)Exhibit A2: Applicant’s Preliminary Statement of Facts, Issues and Contentions dated 3 July 2024;
(c)Exhibit A3: Applicant’s Statement of Facts, Issues and Contentions dated 16 September 2024;
(d)Exhibit A4: Applicant’s Statement of Facts, Issues and Contentions in Reply dated 4 November 2024;
(e)Exhibit R1: T-documents lodged 20 June 2024 comprising 148 pages; and
(f)Exhibit R2: Respondent’s Statement of Facts, Issues and Contentions and Annexure dated 21 October 2024.
For the reasons that follow, the Tribunal has decided to affirm the reviewable decision.
INTRODUCTION
The Applicant was born in the United States.[1] He was aged 17 years and 5 months at the time of the Tribunal hearing.
[1] Exhibit R1, 132.
He was adopted at birth in the United States by his parents who are Australian citizens. The Applicant has lived with his parents in the United States his entire life.
The Applicant’s parents hold dual citizenship from the United States and Australia. They moved to the United States from Australia in about March 2002 for work opportunities where they have remained ever since. They adopted the Applicant and his brother who were both born in the United States, in 2007 and 2009 respectively.
The Applicant’s parents became United States citizens on 8 August 2011. The Applicant’s father was born in Australia, whilst the Applicant’s mother was born in the United Kingdom but arrived in Australia at a very young age.
The Applicant lodged an application for Australian citizenship by conferral on 19 July 2023 when he was 15 years old. The Applicant turned 16 years old the next day.
On 29 September 2023, the Department of Home Affairs wrote to the Applicant seeking further information namely a consent for an Australian criminal history check (as the Applicant was now 16 years old), identification documents of a responsible parent and evidence demonstrating an intention to reside in Australia.
In response, the Applicant provided a statement to the Department dated 16 October 2023.
On 24 April 2024, a delegate of the Respondent exercised the discretion to refuse the Applicant’s application for Australian citizenship under s 24(2) of the Australian Citizenship Act 2007 (Cth) (the Act). The Applicant was aged 16 years at the time of the decision. The Applicant otherwise met the eligibility criteria under s 21(5) of the Act.
On 17 May 2024, the Applicant lodged an application for review of that decision.
ISSUE TO BE DETERMINED
Both parties agree that the Applicant meets the eligibility requirements under s 21(5) of the Act.[2]
[2] Exhibit A3 [11], Exhibit R2 [17].
The issue the Tribunal therefore needs to determine is whether the discretion in s 24(2) should be exercised to refuse the Applicant’s application for Australian citizenship by conferral by having regard to the Applicant’s circumstances and the applicable policy requirements.
Preliminary issue
A preliminary issue that needed to be addressed at the outset of proceedings was which part of CPI 4 (Persons aged under 18 years) should apply to the Applicant. CPI 4 has separate policy considerations for applicants who are aged 15 years and under at the time of application (15 years policy) and for applicants who are aged 16 or 17 years old (16/17 years policy) at the time of application.
In this case, the Applicant was aged 15 years at the time he lodged his citizenship application but was aged 17 years at the time of the Tribunal hearing.
The parties made written and oral submissions to the Tribunal as to which part of CPI 4 ought to be applied to the Applicant.
It was submitted on behalf of the Applicant that he should be assessed under the 15 years policy because he was aged 15 years at the time his citizenship application was lodged, despite being 17 at the time of the Tribunal hearing. The Respondent submitted that the Applicant could be assessed under either the 15 years policy or the 16/17 years policy and submitted that, in any case, the Applicant does not meet either policy.
The Respondent referred the Tribunal to two relevant decisions regarding policy the Tribunal has previously applied in similar circumstances. In Teng and the Minister for Immigration and Citizenship (‘Teng’), the Applicant was aged 14 at the time of application but had turned 16 at the time of the Tribunal hearing.[3] In that case, the Tribunal concluded that the relevant policy to apply was the 16/17 years policy (as it existed at that time). The Tribunal held:[4]
The Minister points out, correctly, that the policy refers to a child who is “under the age of 16 when applying” (emphasis added) but nothing in the legislation or the policy refers to an applicant’s age at the time of decision.
In my view, the guidelines relevant to a person aged 16 and over should apply. The guidelines relevant to a person under 16 are more protective of the applicant. A child aged 16 and over is not required to be living with a responsible parent, does not require the consent of a responsible parent and significant hardship or disadvantage need only be shown where an applicant does not satisfy the residence requirement (in s 22).
In my view, a child’s best interests are best assessed at the time of the decision. It makes little sense to apply the more protective guidelines to a child who is now of an age such that, by implication, the guidelines recognise they are in less need of protection. It follows that Ms Teng’s application should now be assessed according to the policy relevant to applicants between the ages of 16 and 18.
[3] [2012] AATA 388 (‘Teng’).
[4] Teng [19]-[20].
The Respondent however acknowledged a differing view was taken in Mohamed and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘Mohamed’).[5] In that case, even though the Applicant had turned 18 at the time of hearing, the Tribunal assessed the applicant against the policy applicable to 15 years and under. The Respondent in that case urged the Tribunal to consider the Applicant under the 16/17 years policy.[6]
[5] [2020] AATA 2420 (‘Mohamed’).
[6] Mohamed [35].
After brief submissions on the issue, the Tribunal decided to apply the 16/17 years policy, being the age of the Applicant at the time of the hearing of the matter. In doing so, the Tribunal noted that subject to any legislative indication to the contrary, the task of the Tribunal is to make the correct and preferable decision in the circumstances as they exist at the time of its decision.[7] The threshold eligibility was met when the Applicant applied for Australian citizenship at the age of 15, but given the Applicant’s age at the time of hearing (17), it is appropriate to apply the 16/17 years policy, consistent with the Tribunal’s reasoning in Teng. The case of Mohamed can be distinguished on its facts; as it involved an Applicant, who, by the time of the Tribunal hearing, was aged 18 years (and therefore not in the 16/17 years policy category).
[7] Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31.
LEGISLATIVE FRAMEWORK
Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Section 21(5) provides the eligibility criteria for applicants aged under 18 years:
Person aged under 18
(5) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged under 18 at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application.
Section 24(1) of the Act states that if a person makes an application under s 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Section 24(2) of the Act provides the Minister with a discretion to refuse the person becoming an Australian citizen despite the person being eligible under s 21(2), (3), (4), (5), (6) or (7).
Section 52(1)(b) provides that an application may be made to the Tribunal for review of a decision made under s 24 to refuse to approve a person becoming an Australian citizen.
Citizenship Policy and Procedural Instructions
The Australian Citizenship Policy Statement (‘Policy’) and the Revised Citizenship Procedural Instructions (‘CPI’) provide policy guidance to decision-makers exercising powers under the Act.
The relevant policy applicable to the current application is:
(a)CPI 4 – Australian Citizenship by Conferral – Person under 18;
(b)CPI 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia;[8]
(c)CPI 12 – Assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship; and
(d)CPI 13 – Best interests of the child assessments.
[8] An updated version of CP1 11 dated 4 October 2024 was provided by the Respondent on 21 October 2024 (Exhibit R2, Annexure). This updated version has been relied upon by the Tribunal.
It should be noted that policy and procedures do not have the force of law.[9] As set out in CPI 4 for example:
When exercising powers or making decisions under legislation, citizenship officers must give policy documents due weight, but must not apply policy inflexibly and may consider the merits of each individual case. In order to make a fair, reasonable and lawful decision, it may be appropriate to depart from the approved policy and procedures, depending on the facts of the particular case.
[9] Exhibit R1, 75.
The Tribunal will generally follow policy unless there are ‘cogent reasons’ not to do so.[10] Neither party has submitted that the policy guidance should not be followed in this case. The Tribunal has had regard to the relevant policy in this case and has followed it.
[10] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
CPI 4 – Australian Citizenship by Conferral – Person under 18
The stated purpose of CPI 4 is to identify the legal requirements, and related policy and procedures that apply to the assessment of an application under s 21(5) of the Act to become an Australian citizen by conferral for persons under the age of 18.[11]
[11] Exhibit R1, 75.
Paragraph 9 of CPI 4 deals with applicants who are aged 16 or 17 years at the time of application. It provides:[12]
In addition to the legal requirements set out in subsection2 1(5), delegates are to give due consideration to the policy guidelines below, in deciding whether to approve or refuse f applicants who are aged 16 or 17 years at the time of application.
Delegates are to consider this policy for the purpose of guiding the exercise of the discretion in subsection 24(2) of the Act, to refuse to approve a person as an Australian citizen, even if they meet the eligibility criteria in subsection 21(5). See section 10.1 below in this Instruction for further information. As noted above, the policy guidelines must not be applied inflexibly, particularly in circumstances where the applicant may suffer significant hardship or disadvantage. Refer to CPI 12 – Assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship and CPI 13 – Best Interests of the Child Assessments.
Applicants for conferral of Australian citizenship aged 16 or 17 years at time of application are required to make a pledge of commitment in order to become an Australian citizen. As a result, there is a requirement for the delegate to consider whether the person understands the commitment they are making. Factors that may be taken into consideration by delegates include whether they have spent sufficient time in Australia, to become familiar with the Australian way of life and the values to which they will need to commit as Australian citizens.
[12] Ibid 81.
With regard to residence, paragraph 9.1 provides:[13]
Under policy, a relevant consideration when determining whether to exercise the discretion at subsection 24(2) of the Act, is to take into account the amount of time that applicants aged 16 or 17 years have spent in Australia prior to lodging an application for citizenship by conferral.
A sufficient period is usually two years residence in Australia immediately prior to the application. This would usually mean that the applicant would have attended at least 12 months schooling in Australia, and a delegate may on that basis be satisfied that the person:
·Understands the nature of the application;
·Possesses a basic knowledge of English; and
·Has an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship.
[13] Ibid.
Paragraph 9.2 of CPI 4 deals with an intention to reside or continue to reside in Australia or maintain a close and continuing association with Australia. It provides:[14]
Applicants are expected to sign the declaration on their application form, that they have an intention to reside or continue to reside in Australia or maintain a close and continuing association with Australia.
However, in cases where:
·the applicant’s travel history shows short periods in Australia prior to the application, or
·one or both of the applicant’s parents are not resident in Australia,
the applicant must be interviewed and asked about their and their family’s plans for the immediate future, such as study overseas, intention to return to country of origin, employment plans. Plans for the whole family may be relevant.
[14] Ibid 82.
Paragraph 9.3 provides that delegates must consider whether the client would be subject to significant hardship or disadvantage before proceeding to refuse an application, by reference to CPI 12 – Assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship.[15]
[15] Ibid.
CPI 4 also provides that where an application is being considered for refusal using the discretion set out in s 24(2) of the Act, a best interest of the child assessment will be required if the applicant is aged under 18 at the time of the decision, by reference to CPI 13 – Best Interest of the Child Assessments.[16]
CPI 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia
[16] Ibid.
The purpose of CPI 11 is to set out the legal requirements and related policy and procedures that apply to an assessment of whether a person is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the person’s application for citizenship were approved.[17]
[17] Exhibit R2 Annexure, 1.
Paragraph 3.4 deals with the requirements of likely to reside, or to continue to reside in Australia:
The words comprising the phrase ‘likely to reside, or to continue to reside’ are to be given their ordinary meaning in the context in which they appear. The Macquarie Dictionary Online defines:
·‘likely’ as probably or apparently going or destined (to do, be, etc.) – in the context of the requirements of the Act, this means it is probable rather than possible that the person will reside in Australia;
·‘reside’ as to dwell permanently or for a considerable time; have one's abode for a time – in the context of the requirements of the Act, this means the person’s home in which they ordinarily live is in Australia.
The person’s intention to reside in Australia may be investigated if the applicant:
·has indicated they will be outside Australia for six months or more during the processing of their application; or
·has indicated they will reside outside Australia after obtaining Australian citizenship; for example, they have indicated an intention to migrate elsewhere or to take up employment outside Australia;
…
Past international movements may also indicate that a person’s intention to reside in Australia may require further investigation. For example, a person having spent significant periods of time outside Australia while a permanent resident and who is seeking to have the Ministerial discretion in subsection 22(9) of the Act applied to their circumstances may bean indicator they are not residing in Australia. However, evidence of the person’s intended residence is to be considered.
Paragraph 3.5 deals with the requirements of likely to maintain a close and continuing association with Australia:
The words comprising the phrase ‘likely to maintain a close and continuing association’ are given their ordinary meaning in the context in which they appear. The Macquarie Dictionary Online defines:
·‘maintain’ as to keep in existence or continuance; preserve; retain;
·‘close’ as near, or near together, in space, time, or relation;
·‘continuing’ as to last or endure;
·‘association’ as the act of associating … connection or combination.
It is important to note that the requirement to maintain a close and continuing association refers to an association with Australia, not with Australians. This means that a close and continuing association with immediate/extended family or other social relationships or networks in Australia, on its own, may not be a sufficient factor to meet this requirement, although each case must be considered on its own merits.
While not defined in legislation, the purpose of this part of the requirements is that the applicant demonstrates that they are participating in the Australian community, although they are not residing in Australia. This may include, but is not limited to:
·participation in a community group that provides services or engages in activities of benefit to the Australian community;
·undertaking education or profession-based studies with an Australian institution; or
·membership of a board or committee of a club, charity or other entity that provides services, recreational or educational opportunities in Australia.
CPI 12 – Assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship
CPI 12 is to be considered where an applicant who is aged under 18 years does not meet the approved guidelines.
Paragraph 3.2 deals with the meaning of ‘significant hardship or disadvantage’ and ‘significant hardship or detriment’:[18]
The words ‘significant’, ‘hardship’, ‘disadvantage’ and ‘detriment’ are not defined in the Act.
The Macquarie Dictionary Online provides the following definitions:
significant important; of consequence.
hardship a condition that bears hard upon one; severe toil, trial, oppression, or need; an instance of this; something hard to bear.
disadvantage absence or deprivation of advantage; any unfavourable circumstance or condition.
injury to interest, reputation, credit, profit etc.; loss; to subject to disadvantage.
detriment loss, damage or injury; a cause of loss or damage.
[18] Exhibit R1, 96.
CPI 13 – Best interests of the child assessments
This CPI provides guidance on when to consider the best interests of a child when making decisions that may affect the interests of a child. As noted in regard to CPI 4 above, CPI 13 must be considered when where an application is being considered for refusal using the discretion set out in s 24(2) of the Act.
Paragraph 3.2 of the CPI provides a definition of ‘best interests of the child’:
‘Child’, when used in this Instruction, means a person who has not turned 18 years of age.
The phrase ‘best interests of the child’ is not defined, but is informed, in part, by the principles in the UNCRC. The factors that are most likely to be relevant to citizenship decisions are:
·children should be protected from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse;
·families should be able to stay together, as far as possible;
·the rights and duties of parents and other relevant family members should be respected and it should be recognised that both parents have common responsibilities for the upbringing and development of the child;
·a child has the right to preserve his or her identity, including nationality, name and family relations as recognised by law;
·prevention of the illicit transfer and non-return of children abroad;
·freedom of religion;
·the views of the child should be given weight in accordance with the child’s age, maturity and level of understanding; and
·the degree of the child’s integration into the Australian community.
Paragraph 3.4 details the factors to take into considering the best interests of the child. It provides that that:
Consistent with Australia’s international human rights obligations, the ‘best interests of the child’ is a primary consideration in actions concerning children, where there is the discretion to do so. These obligations do not require that the best interests of the child be the only primary consideration, or be considered at all where there is no discretion under legislation. The best interests of the child must be weighed with or against any other primary considerations in the specific circumstances. Other primary considerations may include (but are not limited to):
·the objectives of the relevant provision/s in the Act;
·community protection; and
·community expectations.
This means that although it may be assessed that a particular decision would be in the best interests of a child, it does not automatically follow that it is the decision that should be made.
EVIDENCE BEFORE THE TRIBUNAL
The Tribunal heard evidence from the Applicant, as well as his relatives, family friends and counsellor.
The Applicant’s evidence can be summarised as follows:
·He was born in the United States and is a US citizen;[19]
[19] Exhibit A1, 3.
·He holds an Australian permanent resident visa;[20]
[20] Ibid.
·He is due to finish high school in the US in May 2026;
·He wants to study physiotherapy at an Australian university;
·He has a younger brother who is also a US citizen and permanent resident of Australia;[21]
·His extended family are Australian citizens and live in Australia. They have been involved in his life since he was an infant;
·He has made many trips back and forth between the US and Australia and has had numerous stays in Hobart, Melbourne, Sydney and Port Macquarie over the years;[22]
·He is very close to his grandparents, and they spend one month of every US summer together;[23]
·He is connected with his Australian cousins and family friends over social media;
·He is ‘very athletic’ and sees himself ‘having a future in college then professional sports, with his current sports including football, basketball and athletics;[24]
·He considers ‘it would be really important for [him] to be able to share the Australian citizenship of [his] parents’;[25]
·He has struggled with ‘identity and family issues my whole life’ but wants to have a ‘shared cultural and national identity with my parents, which we all regard as Australian’; and[26]
·He describes feeling ‘shock’ when his citizenship was denied because he felt he was being treated differently to other children of Australian citizens.[27]
[21] Ibid.
[22] Ibid.
[23] Ibid.
[24] Ibid 5.
[25] Ibid.
[26] Ibid 6.
[27] Ibid.
The Applicant’s parents currently reside and work in the US having moved there on a permanent basis from Australia in March 2002. They parents gave consistent evidence describing their strong connection to Australia. The Applicant’s father gave evidence that he is a CEO of his company in the US and that he and the Applicant’s mother moved to the US for work opportunities. They each gave evidence that they eventually would like to return to Australia once their youngest son (the Applicant’s brother) finishes high school. According to the Applicant’s mother that would be in May 2028.
They describe raising the Applicant in an ‘Australian household’ including by following AFL football, eating Australian foods and sharing Australian cultures and traditions.[28] The Applicant’s father stated that they want to give the Applicant ‘a strong sense of Australian society, community and culture, which is as strong as his connection to American culture.’[29]
[28] Ibid 9, 14.
[29] Ibid 9.
The Applicant’s father stated that whilst he and the Applicant’s mother have acquired US citizenship, it was for employment purposes and is not something they consider as part of their identity, adding that they would never surrender their Australian citizenship.[30]
[30] Ibid 9, 12.
The Applicant’s father described the ‘rejection’ that an adopted child feels at birth, and they ‘trust that our homeland would recognise our family as Australian’ and not perpetuate a further rejection by denying him citizenship.[31]
[31] Ibid 10.
The Applicant’s mother provided a written statement which detailed their previous attempt to obtain Australian citizenship by descent for the Applicant which was denied.[32] She spoke of the effect of the denial of Australian citizenship by conferral as being ‘even more devastating for [the Applicant]’.[33] Her evidence is that her son has been raised ‘the Australian way’ and has been immersed in Australian culture and traditions.[34] She spoke of his love for Australia and for his Australian family. She states that whilst the Applicant resides with them in the US for now, his ultimate desire and goal is to live, study, work and contribute to Australia.[35]
[32] Ibid 13-14.
[33] Ibid 14.
[34] Ibid.
[35] Ibid.
The Applicant’s cousin resides in Tasmania. She gave evidence that she has visited him on many occasions in the US, and that he has visited her in Tasmania.[36] They maintain regular contact via social media and often talk about Australian sports and culture. Her evidence is that the Applicant wants to live and study in Australia. She describes her family as ‘very close’ and wants the Applicant to be granted Australian citizenship so that he can reside in Australia.[37]
[36] Ibid15.
[37] Ibid 16.
The Applicant’s uncle resides in New South Wales. He has also travelled to the US to visit the Applicant and have been close to him since he was born.[38] He gave evidence that he is aware of the Applicant’s parents plans to return to Australia, and the Applicant’s plans to live and study here.[39]
[38] Ibid 17.
[39] Ibid 18.
The Applicant’s grandfather lives in Tasmania. He and his wife have also visited the Applicant and his family on annual trips to the US since the Applicant was born.[40] He has a close bond with the Applicant and they share a common interest in sports.[41] He also confirmed the Applicant’s parents desire to return to Australia, and of the Applicant’s interest of living and studying in Australia.[42]
[40] Ibid 19.
[41] Ibid.
[42] Ibid 19-20.
The Applicant also called evidence from two family friends (KP and NR) who are both Australian citizens whom currently live in the US. KP gave evidence that she has known the Applicant since he was a newborn and they share a common interest in Australian foods and sporting activities.[43] NR gave evidence regarding the Applicant’s interest in Australian culture and likewise confirmed the Applicant’s parents desire to return to Australia.[44] Both were aware of the Applicant’s own interest in moving to Australia.[45]
[43] Ibid 21.
[44] Ibid 22.
[45] Ibid 21, 22.
The Applicant also called evidence from his counsellor who resides in the US. The Applicant’s counsellor gave evidence of the Applicant’s feelings of rejection arising from the denial of his Australian citizenship application.[46] He gave evidence that this is even more acute for someone who was adopted, and desires to feel a sense of belonging with his family, who are Australian.[47]
ANALYSIS
[46] Ibid 23.
[47] Ibid.
Eligibility requirements under s 21(5) of the Act
The Applicant is eligible to become an Australian citizen under s 21(5) of the Act because at the time he made his application on 19 July 2023, the Applicant was:
(a)aged 15 years (s 21(5)(a) of the Act); and
(b)a permanent resident having obtained permanent residency on 3 July 2023 (s 21(5)(b)(i)).[48]
[48] Ibid 26.
As noted previously, s 24(2) provides a discretion to refuse to approve a person becoming an Australian citizen despite the person being eligible under s 21(5) of the Act.
Policy requirements under the CPIs
CPI 4 – Australian Citizenship by Conferral – Person under 18
The policy requirements for applicants aged 16 and 17 years are set out in paragraph 9 of CPI 4. Paragraph 9.1 states that a relevant consideration when determining whether to exercise the discretion under s 24(2) is to take into account the amount of time that applicants aged 16 or 17 years have spent in Australia prior to lodging an application for citizenship by conferral, with a sufficient period usually being two years residence immediately prior to the application.[49] The policy further provides that where an applicant aged 16 or 17 years has not been resident in Australia for the two years prior to the application, they must be interviewed for a delegate to consider whether the applicant understands the commitment they are making.[50]
[49] Exhibit R1, 81.
[50] Ibid.
In this case, the Applicant has only visited Australia for short periods of approximately three weeks at a time.[51] The Respondent notes that the Applicant has spent a total of 165 days in Australia during these visits during his entire life.[52] He has not spent sufficient time in Australia nor attended schooling here.
[51] Ibid 147.
[52] Exhibit R2 [66].
The evidence from the Applicant and his parents did demonstrate that the Applicant does have a general interest in and understanding of Australia. However, this level of interest and understanding, combined with the relatively short duration of these visit does not satisfy the residence requirements of this policy, nor does it demonstrate an understanding of the commitment the Applicant is seeking to make.
CPI 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia
The Tribunal has also considered whether the Applicant has an intention to reside or continue to reside in Australia or maintain a close and continuing association with Australia in accordance with paragraph 9.2 of CPI 4. Further guidance in regard to this requirement is to be found in CPI 11 as described above.
The Tribunal has considered the submissions of both parties. The evidence of the Applicant and his parents are that they intend on returning to Australia when their youngest child finishes high school in the US in May 2028. The Applicant himself is due to finish high school in May 2026. During this two-year gap, the Applicant’s mother gave evidence that the Applicant is likely to attend community college or similar in the United States with a view to obtaining ‘credit’ towards his preferred course of university study in Australia. The Applicant gave evidence that he will be applying, alongside his peers, to colleges and universities in the United States. The Applicant’s parents’ evidence in this regard is that he will be applying for American colleges and universities because that is what would be expected of a high school student in the United States. Despite this, the Applicant did express a strong desire to pursue university study and potential sporting opportunities in Australia upon moving here.
The Applicant’s representative submitted that there is nothing in the legislation or the CPI requiring the ‘intention to reside’ in Australia be within a particular time.[53] The Respondent maintains that the Applicant has not provided sufficient evidence to demonstrate an intention to reside or maintain a close and continuing association with Australia.[54]
[53] Exhibit A3 [22].
[54] Exhibit R2 [70].
In the Tribunal’s view, the Applicant has not demonstrated an intention to reside or maintain a close and continuing association with Australia, even without a temporal limitation. The Applicant and his parents have plans to return to Australia in May 2028, but those plans are at best speculative. There is little evidence of firm plans to return to Australia and what that might look like. The evidence of the Applicant’s parents, at its highest, was that their respective employment ‘could’ be undertaken in Australia but again there were no firm plans in this regard. There were no firm plans as to residence, though both the Applicant and his parents gave evidence that the family would likely return to Hobart, to be closer to the Applicant’s grandparents. The Applicant’s evidence that he wishes to study physiotherapy at Latrobe University or Western Sydney University appears to be at odds with the Applicant’s plan to reside in Tasmania.
Further, paragraph 3.5 requires an applicant to maintain a close and continuing association with Australia, not Australians.[55] The Tribunal acknowledges the Applicant’s close and continuing association with Australians is strong, but notes that this is not sufficient to meet this requirement. Paragraph 3.5 provides examples of what could be regarded as maintaining a close and continuing association with Australia.[56] The Applicant has not provided evidence of participation in an Australian community group, nor has he undertaken any schooling or education in Australia, nor is there any evidence of memberships of boards or charities that provide services, recreational or educational opportunities in Australia.
[55] Exhibit R2 Annexure, 4.
[56] Ibid.
In the Tribunal’s views, the policy requirements under CPI 4 and CPI 11 are not met.
CPI 12 – Assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship
Paragraph 9.3 of CPI 4 provides that where the above policy guidelines are not met, delegates must consider whether the applicant would be subject to significant hardship or disadvantage before proceeding to refuse an application. Guidance for assessing this policy is to be found in CPI 12 (Assessing significant hardship, disadvantage or detriment for the purpose of Australian citizenship).
In his written submissions, the Applicant and his parents maintain that that the Applicant has struggled with identity, and that refusal of his citizenship application has had a negative impact on the Applicant’s wellbeing.[57] The Applicant’s counsellor also provided evidence that citizenship refusal ‘would have significant consequences and negative impacts on (the Applicant’s) identity, emotional health, relational health and future.’[58]
[57] Exhibit A3 [41].
[58] Exhibit A1, 24.
CPI 12 notes that the terms ‘significant’, ‘hardship’, ‘disadvantage’ and ‘detriment’ are not defined in the Act.[59] The CPI provides that the hardship or disadvantage/detriment must be significant and of consequence to the person.[60]
[59] Exhibit R1, 96.
[60] Ibid.
As noted by the Respondent, the Applicant presently holds a permanent visa which allows him to travel to and remain in Australia, and have the same access to education, health and social welfare services as other permanent residents.[61] As a consequence, the Respondent submits that a refusal decision would not subject the Applicant to significant hardship or disadvantage.[62]
[61] Exhibit R2 [73].
[62] Ibid.
CPI 12 provides examples of ‘common scenarios’ encountered in the conferral caseload. They include a claimed inability to obtain work in Australia, difficulty of international travel because the person cannot obtain a passport from their country of nationality, or an inability to access educational opportunities until they become an Australian citizen.[63]
[63] Exhibit R1, 96-7.
The Tribunal is of the view that the Applicant would not suffer significant hardship, disadvantage or detriment if his application for Australian citizenship were refused. The Applicant has permanent residence status in Australia until 3 July 2028.[64] As noted by the Respondent, the Applicant has the same access to education, health and welfare services as other permanent residents. The Applicant also holds a current United States passport which means the Applicant does not have the difficulty of international travel.[65] The Applicant has not demonstrated significant hardship, disadvantage or detriment in regard to this policy consideration, and therefore this policy requirement is not met.
[64] Exhibit A1, 26.
[65] Exhibit A1, 25, Exhibit R1, 96.
CPI 13 – Best interests of the child assessments
Paragraph 9.3 of CPI 4 further provides that were an application is being considered for refusal under s 24(2) of the Act, a best interest of the child assessment will be required.[66]
[66] Exhibit R1, 82.
The Applicant submits that the best interests of the child assessment should be exercised in the Applicant’s favour due to his unique circumstances of him being an adopted child.[67] The Applicant relies on the material referred to above in regard to hardship, and submit it is in the best interests of the Applicant that his application for Australian citizenship by conferral be approved.[68]
[67] Exhibit A3 [40].
[68] Ibid [48].
The Respondent submits that the best interests of the child assessment weigh in the Applicant’s favour, but only marginally.[69] The Respondent refers to paragraph 3.4 of CPI 13 which provides that ‘[t]he best interests of the child must be weighed with or against any other primary considerations’, and ‘although it may be assessed that a particular decision would be in the best interests of a child, it does not automatically follow that it is the decision that should be made.’[70]
[69] Exhibit R2 [77].
[70] Exhibit R2 [78], citing Exhibit R1, 103.
The Respondent notes that to the extent the best interest of the child consideration weighs in the Applicant’s favour, it is not outweighed by the fact that the Applicant does not satisfy any of the other relevant policy considerations for conferral of citizenship.[71]
[71] Exhibit R2 [79].
The Tribunal agrees with the Respondent’s submission in this regard. The Tribunal does consider that although a favourable decision would be in the Applicant’s best interests, this is substantially outweighed by the Tribunal’s findings that the Applicant does not meet any of the other policy requirements for Australian citizenship.
There being no cogent reasons to depart from policy guidance, the Tribunal finds that that the Applicant does not meet the policy requirements required for Australian citizenship for conferral at this time.
CONCLUSION
The Applicant meets the eligibility requirements under s 21(5) of the Act. Having met the eligibility requirements, the issue for determination by the Tribunal is whether it should exercise the discretion under s 24(2) of the Act to refuse to approve the Applicant becoming an Australian citizen.
The Tribunal has applied the relevant policy as detailed above and has determined that the Applicant does not satisfy the policy requirements for Australian citizenship by conferral at this time.
The Tribunal has therefore determined that the discretion under s 24(2) of the Act should be exercised.
DECISION
The decision under review is affirmed.
89.
90. I certify that the preceding 88 (eighty-eight) paragraphs are a true copy of the reasons for the decision herein of General Member K. Thornton
............................[sgd]............................................
Associate
Dated: 29 January 2025
Dates of hearing: 16 and 17 January 2025 Solicitor for the Applicant: Mr James Hammond Solicitors for the Applicant: Hammond Migration Solicitor for the Respondent: Ms Sophia Xian Solicitors for the Respondent: Clayton Utz
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